F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

AUG 4 1999

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

DANA DREW HAWKINS,

v.

Petitioner-Appellant,

ROBERT D. HANNIGAN, and the

ATTORNEY GENERAL OF THE
STATE OF KANSAS,

No. 97-3326

Respondents-Appellees.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 94-3355-DES)
David J. Gottlieb, Director, The Paul E. Wilson Defender Project, University of
Kansas School of Law, Lawrence, Kansas, for Plaintiff-Appellant.
Jared S. Maag, Assistant Attorney General, State of Kansas, Topeka, Kansas, for
Respondents-Appellees.
Before SEYMOUR, Chief Judge, EBEL and KELLY, Circuit Judges.
EBEL, Circuit Judge.
Petitioner-Appellant Dana Drew Hawkins was convicted in 1984 of
aggravated battery, rape, and aggravated sodomy by a jury in Kansas. He

exhausted his state remedies, and now appeals from the district courts order
denying federal habeas relief under 28 U.S.C. 2254. Hawkins claims that he
was denied effective assistance of counsel at trial and on appeal, and that he was
denied his right to confront and cross-examine the victim at trial. We exercise
jurisdiction under 28 U.S.C. 1291 & 2253 and affirm.
FACTS
On March 26, 1983, during the early morning hours, a 92-year-old woman
in Neodesha, Kansas, was beaten, orally sodomized, and raped in her home. The
victim gave two audiotaped statements to police, but given her admittedly very
poor hearing and eyesight, she was able to provide only a limited description of
her attacker.
On March 27, as part of its investigation, police brought in approximately
100-150 people to be photographed, including petitioner-appellant Dana Hawkins.
Hawkins was not a suspect at the time. However, two days later, on March 29,
Hawkins was questioned briefly at the police station after a witness informed
police that he had seen Hawkins near the victims house the night of the crime.
Later that same evening, Hawkins sister-in-law called police to say that
Hawkins wished to make a further statement. The police brought Hawkins to the
station, and at 10:30 p.m., Hawkins gave an audiotaped interview. During this
interview, Hawkins claimed that an acquaintance, Robert Daugherty, had raped an
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elderly woman and had asked Hawkins to be his lookout. The following day,
March 30, Hawkins returned to the police station to provide a three-page written
statement reiterating this version of events.
At 7:00 a.m. on March 31, Hawkins voluntarily accompanied police chief
Wes Sade from Neodesha to Chanute, Kansas, in order to take a psychological
stress evaluation (PSE) test. At 9:30 a.m., after conducting the PSE, police
gave Hawkins Miranda warnings and questioned him again. During this
audiotaped interrogation in Chanute, Hawkins became upset and confused, and
began to implicate himself in the crime. Hawkins admitted to entering the
victims residence and hearing screams, seeing Daugherty on top of the victim,
and personally hitting the victim because her screaming made him panic. He
admitted to drinking alcohol and smoking marijuana that night, and frequently
stated that he could not remember what had happened.
After the morning interview, Hawkins either requested an attorney or asked
Chief Sade whether he should have one. Questioning stopped at that time, and
Chief Sade transported Hawkins back to Neodesha, where he was arrested for
assault and conspiracy to commit a felony and burglary. After being processed at
the Neodesha police department, Hawkins was taken to the county attorneys
office. There he renewed his request for an attorney, but none was provided.

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At the county attorneys office, police read Hawkins his Miranda rights and
interrogated him again in two videotaped sessions. During the first videotaped
session, from 2:00 p.m. to 3:15 p.m., police played back for Hawkins the
audiotaped statement he had made in Chanute earlier that day. Chief Sade then
used the rest of the same audiotape to record the remainder of the 2:00 p.m.
videotaped interview. Thus, the audiotape contained both the 9:30 a.m. interview
in Chanute and part of the 2:00 p.m. videotaped interview in Neodesha. This
entire audiotape, containing both sessions, was played for the jury. The
transcript of this audiotape, which appears in the trial record, does not clearly
reflect at what point the morning interview ceased and the afternoon recording
commenced. However, in the later portion of the audiotape, clearly part of the
2:00 p.m. session, Hawkins confessed to hitting and orally sodomizing the victim,
but then subsequently recanted the latter admission.
The first videotaped session ended at 3:15 p.m., and Hawkins was taken to
the scene of the crime. Police then returned Hawkins to the county attorneys
office and began the second videotaped session at 4:00 p.m. This second
videotaped session was played for the jury, but apparently it was later damaged or
destroyed, and is no longer part of the state court record.
The following day, April 1, Chief Sade presented the victim with a photo
lineup, and the victim identified Hawkins as her attacker. Unlike the victims
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other statements to police, her photo identification of Hawkins was not

audiotaped.
In a pretrial motion, defense counsel moved to suppress Hawkins
videotaped statements 1 from March 31 in Neodesha. On October 25, 1983, the
district court denied this motion, finding that even though Hawkins requested an
attorney at least twice, the statements he made in Neodesha were given
voluntarily.
On January 26, 1984, the opening day of Hawkins trial, the parties
submitted a stipulation permitting hearsay statements by the victim to be
introduced at trial. The signed stipulation, which was read into the record,
provided in part that
either party may resort to hearsay evidence pertaining to any
description or identification given by the victim Hazel Burton. Such
hearsay description or identification may be submitted to the jury by
audio tape statements taken from the victim Hazel Burton, photos,
transcription of tapes, and by eliciting hearsay testimony from Chief
Wes Sade of the Neodesha Police Department.
This stipulation and agreement is entered into with full
knowledge by all parties and with the understanding that the victim
Hazel Burton is 92 years of age, in seriously poor health, and that her
appearance in court could prove extremely hazardous to her life.
This stipulation and agreement is further requested by both
parties in that each feels and recognizes a degree of value in those
descriptions or identifications relevant to their individual side of the
case.
1

Counsels motion did not seek to suppress any of the audiotape recordings.
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(Emphasis added.)
At trial, the victims taped statements to the police, describing the incident
and her attacker, were played for the jury. These statements conveyed the
limitations of the victims eyesight, hearing, and memory, and defense counsel
did not object to their admission. However, defense counsel did object when
Chief Sade testified that he had shown the victim a photo lineup, that she looked
at all of the pictures very carefully, and on that date, 4-1-83, at 5:10 p.m., she
picked out Mr. Hawkins, and said it sure looked like him, and specifically pointed
to his picture in the photograph line up. After discussing at sidebar the scope of
the parties stipulation, the trial court overruled defense counsels objections.
In addition to Hawkins videotaped statements made March 31 in Neodesha
and the victims photo identification of Hawkins (as presented through Chief
Sades hearsay testimony), the trial court also admitted, over defense counsels
objection, the transcript of Hawkins testimony at a preliminary hearing in a
separate action against Robert Daugherty, the man originally identified by
Hawkins as responsible for the crime. At that hearing Hawkins admitted to being
in the womans house, but testified that Daugherty had raped the victim while he
stood watch. Hawkins testified pursuant to a plea agreement under which the
state agreed to drop all but the rape charges against Hawkins in exchange for his
testimony against Daugherty. However, the plea agreement was later withdrawn
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when the state determined that Hawkins inculpation of Daugherty had been false
and dropped its case against him.
All of Hawkins audiotaped statements 2 were admitted at trial without
objection, as was his three-page written statement to the police given on March
30. In addition, the government presented forensic evidence that head and pubic
hairs found in the victims bedding matched Hawkins characteristics. 3 The
states expert admitted on cross-examination that the hair evidence was not
conclusive, given his estimate that 30-35 people in Neodesha could have the same
pubic hair characteristics. On redirect, he refused to estimate the number of
people who might share the combined head and hair characteristics.
Hawkins did not testify at trial. His defense rested on alibi testimony and
the suggestion that Daugherty had committed the crime.
Following the three-day trial, the jury convicted Hawkins of aggravated
battery, rape, and aggravated sodomy. On February 29, 1984, he was sentenced to
5-20 years on the aggravated battery conviction, and 15 years to life on the rape
and aggravated sodomy convictions.
These were his March 29, 1983 statement at 10:30 p.m., given at the
Neodesha Police station, and the audiotaped statement given March 31, which
included both the 9:00 a.m. interview in Chanute and a portion of the 2:00 p.m.
interview in Neodesha.
2

The states expert testified that the ratio of people with matching hair
characteristics was 1/700 for the pubic hair and 1/4,500 for the head hair.
3

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On April 5, 1985, the Kansas Supreme Court affirmed Hawkins

convictions on direct appeal. The state court denied post-conviction relief under
Kan. Stat. Ann. 60-1507, which the Kansas Court of Appeals affirmed on
February 7, 1992. Hawkins filed his petition for writ of habeas corpus under 28
U.S.C. 2254 in August 1994, claiming that he was denied his right to effective
assistance of counsel and his right to confront and cross-examine the victim at
trial. The district court denied relief on September 30, 1997. See Hawkins v.
Hannigan, 979 F. Supp. 1397 (D. Kan. 1997). Hawkins now appeals.
DISCUSSION
Because Hawkins 2254 petition was pending at the time the habeas
corpus statute was amended by the Antiterrorism and Effective Death Penalty Act
of 1996, Pub. L. No. 104-132, tit. I, 104 (1996) (AEDPA), those amendments
do not apply to this case. See Lindh v. Murphy, 521 U.S. 320 (1997); Jackson v.
Shanks, 143 F.3d 1313, 1317 (10th Cir.), cert. denied, 119 S. Ct. 378 (1998). We
review the district courts legal conclusions de novo, and its factual findings for
clear error. See Cooks v. Ward, 165 F.3d 1283, 1287 (10th Cir. 1998). [W]e
afford deference to the state courts construction of state law, and presume that
its factual findings are correct. See Jackson, 143 F.3d at 1317 (stating preAEDPA standards).

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On appeal, Hawkins raises two major issues: ineffective assistance of trial

and appellate counsel, and the denial of his right to confront and cross-examine
the victim at trial. For the reasons given below, we affirm the district courts
denial of habeas relief.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Hawkins asserts that he was denied effective assistance of counsel both at
trial and on appeal (by the same attorney). Specifically, Hawkins claims that: 1)
counsel failed to appeal the admission of Hawkins videotaped confession, which
was obtained in violation of his Fifth Amendment right to counsel; 2) counsel
stipulated at trial to the admission of the victims hearsay statements, in violation
of Hawkins Sixth Amendment right of confrontation; 3) counsel failed to appeal
the admission of the transcript of Hawkins testimony given at Robert
Daughertys preliminary hearing, in violation of Hawkins Fifth Amendment right
against self-incrimination; 4) counsel failed to object at trial to a hearsay
statement of an eyewitness who placed Hawkins near the scene of the crime, in
violation of Hawkins right of confrontation; and 5) counsel failed to raise Fourth
Amendment challenges to Hawkins initial detention (prior to his formal arrest).
A. Standard of Review
A claim of ineffective assistance of counsel is a mixed question of law and
fact, which a federal habeas court reviews de novo. See Williamson v. Ward, 110
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F.3d 1508, 1513 (10th Cir. 1997). To prevail on his claims of ineffective
assistance, Hawkins must meet the test established in Strickland v. Washington,
466 U.S. 668 (1984); that is, he must demonstrate that his counsels performance
was constitutionally deficient and that his counsels deficient performance
prejudiced the defense. See Strickland, 466 U.S. at 687; Boyd v. Ward, No. 986309, 1999 WL 370418, at *5 (10th Cir. June 8, 1999).
To prove that his counsels performance was deficient, Hawkins must show
that his counsel committed serious errors in light of prevailing professional
norms such that his legal representation fell below an objective standard of
reasonableness. Duvall v. Reynolds, 139 F.3d 768, 776-77 (10th Cir.) (internal
quotations omitted), cert. denied, 119 S. Ct. 345 (1998). Hawkins must
overcome a strong presumption that counsels conduct falls within the wide range
of reasonable professional assistance that might be considered sound trial
strategy. Moore v. Reynolds, 153 F.3d 1086, 1096 (10th Cir. 1998) (citing
Strickland, 466 U.S. at 689), cert. denied, 119 S. Ct. 1266 (1999). To establish
that counsels deficient performance was prejudicial, Hawkins must also show
that, but for his counsels errors, there is a reasonable probability that the
outcome of the proceeding would have been different. See Duvall, 139 F.3d at
777.

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The Strickland test also applies to assessing the effectiveness of appellate

counsel. See United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). When a
habeas petitioner alleges that his appellate counsel rendered ineffective assistance
by failing to raise an issue on direct appeal, we first examine the merits of the
omitted issue. If the omitted issue is meritless, then counsels failure to raise it
does not amount to constitutionally ineffective assistance. See Parker v.
Champion, 148 F.3d 1219, 1221 (10th Cir. 1998) (citing Cook, 45 F.3d at 39293), cert. denied, 119 S. Ct. 1053 (1999). If the issue has merit, we then must
determine whether counsels failure to raise the claim on direct appeal was
deficient and prejudicial. See Cook, 45 F.3d at 394. For example, counsels
failure to raise a dead-bang winner on appeal an issue that is both obvious
from the trial record, and one which would have resulted in reversal on appeal
constitutes ineffective assistance. See id. at 395. When counsel omits an issue
under these circumstances, counsels performance is objectively unreasonable
because the issue was obvious from the trial record, and the omission is
prejudicial because the issue warranted reversal on appeal. See id.
As discussed below, although we find that Hawkins counsel committed
errors that were deficient under Strickland, we conclude that these errors did not
prejudice Hawkins defense, and therefore hold that Hawkins was not deprived of
his Sixth Amendment right to counsel.
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B. Counsels Alleged Errors

1. The Videotaped Statements
Hawkins first claims that his appellate counsel was ineffective for failing to
appeal the admission of Hawkins two videotaped statements taken the afternoon
of March 31, 1983 at the Neodesha county attorneys office, following Hawkins
requests for an attorney. In the first of these videotaped sessions, the partial
audio-recording of which was played for the jury, Hawkins admits that he hit the
victim and orally sodomized her. The second videotaped statement was also
played for the jury, but its contents do not appear in the trial transcript. 4 Hawkins
argues that the videotaped statements were obtained in violation of his Fifth
Amendment right to counsel, and thus should have been excluded at trial.
Once an individual in custody invokes his right to an attorney, all
questioning by law enforcement officers must cease until an attorney is present.
See Miranda v. Arizona, 384 U.S. 436, 474 (1966); United States v. Roman-

The trial transcript states:

MR. SADE: In Kurt Kluins office. The time now is
4:42 p.m. on the 31st day of March, 1983, and that will
conclude the interview.
(The video tape interview of Mr. Dana Hawkins was
played to the jury; thereafter upon transcription, said
tape contained only the above statement by Mr. Wes
Sade. The balance of the tape contained no video or
audio recordings, except a video tape interview of Mr.
Robert Daugherty. . . .)
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Zarate, 115 F.3d 778, 782 (10th Cir. 1997); United States v. Giles, 967 F.2d 382,
385 (10th Cir. 1992). Moreover, when an accused has invoked his right to have
counsel present during custodial interrogation, a valid waiver of that right cannot
be established by showing only that he responded to further police-initiated
custodial interrogation even if he has been advised of his rights. Giles, 967 F.2d
at 385 (quoting Edwards v. Arizona, 451 U.S. 477, 484 (1981)). [A]n accused . .
. having expressed his desire to deal with the police only through counsel, is not
subject to further interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further communication,
exchanges, or conversations with the police. Edwards, 451 U.S. at 484-85.
Hawkins contends that he requested counsel three times prior to the
interviews depicted in the challenged videotapes: after the audiotaped interview
in Chanute on the morning of March 31; in the car on the way back from Chanute
to Neodesha after being placed under arrest; and again at the county attorneys
office in Neodesha, just prior to being questioned on videotape. At Hawkins
state collateral review hearing, Chief Sade acknowledged that Hawkins made
some type of mention about an attorney following the morning interview in
Chanute. However, Sade testified that Hawkins initiated conversation in the car
on the way back to Neodesha, asking Sade what he thought might happen to him,
and if he would be sent to a mental institution. Sade further stated that he did not
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recall whether Hawkins requested a lawyer at the Neodesha county attorneys

office.
On state collateral review, the Kansas Court of Appeals acknowledged the
trial courts finding that Hawkins renewed his request for counsel in Neodesha.
The court of appeals concluded that the statements taken at the county attorneys
office should have been suppressed because the police initiated interrogation after
Hawkins had renewed his request for counsel. However, the court ultimately
ruled that the failure to raise the issue on direct appeal did not constitute
ineffective assistance of counsel, as Hawkins had failed to establish prejudice
under Strickland.
In reviewing this claim of ineffective assistance in Hawkins 2254
petition, the federal district court opined that had Hawkins counsel directly
appealed the admission of the recorded statements, the issue would have required
examination under both Edwards and Oregon v. Bradshaw, 462 U.S. 1039, 104346 (1983) (holding that a defendants inquiry as to what might happen to him
initiated conversation with police, triggering the exception to the Edwards
rule). See Hawkins, 979 F. Supp. at 1403. However, the district court concluded
that [w]hile the issue had obvious merit and should have been raised, given the
competing Supreme Court authorities at the time of petitioners trial and the
absence of the challenged videotaped statements, this court is unable to find that
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petitioners state court appeal would have resulted in a reversal of petitioners

conviction. Id. at 1403.
By its reference to Bradshaw, it appears that the district court was
concerned with the implications of Hawkins having possibly reinitiated
discussions with the police during the trip back to Neodesha. The district courts
concern is misplaced, however. The Kansas Court of Appeals found that Hawkins
requested counsel again just prior to questioning in Neodesha, a finding entitled
to a presumption of correctness. See Strickland, 466 U.S. at 698 ([S]tate court
findings of fact made in the course of deciding an ineffectiveness claim are
subject to the deference requirement of 2254(d) . . . .). Thus, even if Hawkins
did initiate conversation with Chief Sade in the car on the trip back to Neodesha,
his subsequent request for counsel at the county attorneys office renders
Edwards, not Bradshaw, controlling of these facts. Under Edwards, Hawkins
statements at the county attorneys office in Neodesha were obtained in violation
of Hawkins right to counsel and should have been suppressed. Therefore, as
constitutional error, the right to counsel issue indeed had obvious merit, and
counsels failure to raise the issue on appeal constituted deficient performance.
Furthermore, the error may have warranted reversal on direct appeal. See Giles,
967 F.2d at 385-86 (10th Cir. 1992) (reversing federal conviction on direct appeal

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for Edwards violation); United States v. Kelsey, 951 F.2d 1196, 1198-1200 (10th
Cir. 1991) (same).
Because the question of whether counsels deficient performance was
prejudicial under Strickland requires an examination of the trial record as a
whole, we turn to the other alleged errors in representation before undertaking
this inquiry.
2. The Pre-Trial Stipulation
Hawkins next claims that his counsels stipulation to the admission of
hearsay evidence, which allowed into evidence the victims identification of
Hawkins through Chief Sades testimony, violated Hawkins Sixth Amendment
right of confrontation. Hawkins contends that counsel mistook the scope of the
stipulation, especially regarding the victims identification of Hawkins from a
photographic lineup as introduced through the hearsay testimony of Chief Sade.
As a result, Hawkins claims that his counsel did not understand what he was
agreeing to, such that Hawkins, as his client, cannot be said to have made a
knowing and voluntary waiver of his confrontation rights.
The Confrontation Clause provides that in all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against
him. U.S. Const. amend. VI. There is no doubt that a defendant may waive this
right. See Brookhart v. Janis, 384 U.S. 1, 4 (1966). However, because there is a
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presumption against the waiver of constitutional rights, see id., for a waiver to be
effective it must be clearly established that there was an intentional
relinquishment or abandonment of a known right or privilege. See id. (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
On direct review, the Kansas Supreme Court held that the stipulation,
which was signed by both Hawkins and his lawyer and which was read and
reviewed by the trial court in Hawkins presence, reflected Hawkins valid
consent to the admission of the evidence covered by the stipulation. However, on
state collateral review, the Kansas Court of Appeals observed that nothing in the
record beyond the stipulation itself indicated that Hawkins knew or understood
that he had a constitutional right to confront his accuser, or that by signing the
stipulation, he was waiving that right. Moreover, the court of appeals found that
the state failed to meet its burden under Boykin v. Alabama, 395 U.S. 238, 244 &
n.7 (1969), to insure that the record reflected a valid waiver. The court thus
concluded that there was no valid waiver by Hawkins, and consequently, the
hearsay testimony of the victims account of the attack and her identification of
the attacker was admitted in violation of Hawkins right to confront his accuser.
Nevertheless, the court of appeals ruled that counsel was not ineffective, as
counsels decision to enter the stipulation was a matter of reasonable trial
strategy.
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On federal habeas review, the district court agreed that the stipulation
reflected a reasonable strategic decision not to have the elderly victim testify at
Hawkins jury trial. The court reasoned that defense counsels apparent surprise
at the scope of the stipulation simply indicated counsels mistaken assessment of
the risk in his strategy of keeping the victim off the stand. See Hawkins, 979 F.
Supp. at 1402. The court concluded that in any event, Hawkins could not
establish prejudice under Strickland, in light of the other evidence before the jury.
The precise issue before us is whether Hawkins counsel, by stipulating to
the admission of hearsay evidence, properly waived his clients constitutional
confrontation rights. This issue was addressed in United States v. Stephens, 609
F.2d 230 (5th Cir. 1980). In Stephens, the appellants had been charged along
with five other individuals in a multi-count indictment, and the court ordered
appellants trial to be severed from their codefendants. See id. at 231. At
appellants bench trial, defense counsel stipulated to the admission of the
transcript from the codefendants trial in exchange for the governments
agreement to drop all but one of the substantive counts against the appellants.
See id. at 231-32. Appellants argued that counsels stipulation effectively denied
them their Sixth Amendment right of confrontation. See id. at 232. The Fifth
Circuit rejected the argument and held that counsel in a criminal case may waive
his clients Sixth Amendment right of confrontation by stipulating to the
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admission of evidence, so long as the defendant does not dissent from his
attorneys decision, and so long as it can be said that the attorneys decision was a
legitimate trial tactic or part of a prudent trial strategy. Id. at 232-33. The Fifth
Circuits holding in Stephens comports with decisions of the First and Ninth
Circuits. See Cruzado v. People of Puerto Rico, 210 F.2d 789, 791 (1st Cir.
1954) ([W]here an accused is represented by counsel, we do not see why
counsel, in his presence and on his behalf, may not make an effective waiver of
[the right of confrontation].); Wilson v. Gray, 345 F.2d 282, 286 (9th Cir. 1965)
([T]he accused may waive his right to cross examination and confrontation and .
. . the waiver of this right may be accomplished by the accuseds counsel as a
matter of trial tactics or strategy.). 5
Here, there is no evidence that Hawkins disagreed with or objected to his
counsels decision. Furthermore, we find that counsels decision to enter the
stipulation was a matter of prudent trial strategy. The live testimony of a frail,
elderly rape victim could have been extraordinarily damaging to the defense. We
believe that most competent attorneys would have made the decision to enter the

Cruzado points out that defense counsel may regularly choose to forego
cross examination of a government witness or to limit that cross examination.
See Cruzado, 210 F.2d at 791. That also is an effective waiver of the defendants
right of confrontation which is valid if done pursuant to a reasonable trial strategy
in defendants presence, and without defendants objection thereto, without
requiring proof of defendants knowing and express consent.
5

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stipulation to keep her off the stand. Defense counsels protestations 6 when
Chief Sade testified to the victims identification of Hawkins ring hollow, given
the clear language of the stipulation. 7 Even assuming that Hawkins counsel was
confused and that, notwithstanding the clear language of the stipulation, he never
intended to agree to permit Chief Sade to give hearsay testimony of the victims
identification of Hawkins, we still find that the reasons for entering the
stipulation far outweigh any reason not to enter it; certainly most reasonable
counsel would not have opted to put the victim on the stand just to avoid the
hearsay testimony of Chief Sade, especially given that the victim could have made
an in-court identification of Hawkins. In short, we find that counsels decision
to enter the stipulation was, under the circumstances, an eminently prudent trial
decision. 8

In light of this finding and the fact that the record reflects no dissent

Defense counsel objected to Chief Sades hearsay testimony regarding the

victims photo identification of Hawkins, saying:
6

Everything else she has said to me has been on tape, and there have
been written statements that I have read on these tapes. They have
been transcribed and given to me, and not anything else that she has
said I dont know. I would point out that if she identified him in
response to, is this the guy that you saw, I would object to that. I had
seen all of these other statements before.
The stipulation expressly permitted any description or identification given
by the victim as introduced through, inter alia, hearsay testimony from Chief
Wes Sade of the Neodesha Police Department.
7

In any event, any error by counsel was not prejudicial: the stipulation did
(continued...)
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from Hawkins as to counsels decision, we hold that counsel effectively waived

Hawkins confrontation rights.
Because counsels sound strategic trial decision did not unconstitutionally
deprive Hawkins of his right of confrontation, we hold that counsels
performance, with respect to his decision to enter the stipulation, was not
deficient under Strickland.
3. The Preliminary Hearing Testimony
Hawkins next contends that counsel was ineffective in failing to appeal the
introduction at trial of statements Hawkins had made at Robert Daughertys
preliminary hearing. Hawkins argues that the state obtained his preliminary
hearing testimony in exchange for a promise of leniency (which the state later
withdrew). As such, Hawkins claims that his statements were neither free nor
voluntary, and their admission into evidence at his trial violated his Fifth
Amendment right against self-incrimination. Hawkins relies on Shotwell Mfg.
Co. v. United States, 371 U.S. 341 (1963), which held that evidence of guilt
induced from a person under a governmental promise of immunity must be
(...continued)
not deprive Hawkins of the ability to impeach her identification of him, because
other statements of the victim, similarly introduced pursuant to this stipulation
and not now challenged by Hawkins, independently established the victims poor
vision and hearing and the uncertainty of some of her recollections. Hawkins
points to no further impeachment that he hoped to elicit from cross examination
of the victim at trial that was not already in the record via her other statements.
8

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excluded under the Self-Incrimination Clause of the Fifth Amendment, because a

confession must be voluntary and not obtained by any direct or implied
promises, however slight. Id. at 347 (quoting Bram v. United States, 168 U.S.
532, 542-43 (1897)).
The terms of Hawkins plea agreement, as described by the prosecutor,
were that Hawkins would testify against Daugherty and plead guilty to one count
of rape, in exchange for the states promise to drop all other charges. The plea
agreement was subsequently withdrawn, the prosecutor explained, because [i]t
later turned out based on out of court statements by the defendant and by physical
evidence shown in other witnesses, that Mr. Daugherty did not have a part in this
action. (Trial Tr. 43.)
On collateral review, the Kansas Court of Appeals found no error in the
admission of Hawkins preliminary hearing testimony. The court reasoned that
Hawkins was not entitled to rely on the plea agreement once he chose to testify
differently than he first agreed. However, the court did not elaborate on how
Hawkins testimony at the hearing differed from his agreement.
The federal district court found that the admission of Hawkins prior
testimony raised concerns of fundamental fairness because the state was not only
able to withdraw the plea agreement, but also put Hawkins at a disadvantage by
using testimony given pursuant to a favorable deal. See Hawkins, 979 F. Supp. at
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1404.

See United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir. 1981)

(Because important due process rights are involved, plea negotiations must
accord a defendant requisite fairness and be attended by adequate safeguards to
insure the defendant what is reasonably due [in] the circumstances. (alteration
in original) (quoting Santobello v. New York, 404 U.S. 257, 262 (1971))).
Ultimately, the district court conceded that the issue may have presented a deadbang claim, but was unable to conclude that the claim would have resulted in
reversal on direct appeal, given Hawkins uncontroverted breach 9 of the
agreement, the lack of an express grant of immunity, and the possibility that the
error was harmless in light of other evidence before the jury. See Hawkins, 979
F. Supp. at 1404.
The state contends that Hawkins breached the plea agreement by
testifying untruthfully. However, Hawkins never recanted his story on the record,
and his defense strategy at trial, in part, was to suggest that Daugherty was the
attacker. Aside from a comment by the prosecutor at the suppression hearing, 10
only the trial courts comment during Hawkins state collateral challenge that
Like the Kansas Court of Appeals, the federal district court did not explain
how Hawkins breached the agreement.
9

At the suppression hearing, the prosecution commented to the court that

Hawkins did in fact admit that Mr. Daugherty had nothing to do with the case,
and that the plea bargain stopped at that time when he refused to testify against
Mr. Daugherty.
10

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Mr. Hawkins, in effect, recanted his testimony by saying that [Daugherty] didnt
commit the crime, supports the assertion that the testimony given at the
preliminary hearing was untruthful.
Even if Hawkins did breach the agreement by giving untruthful or only
partially truthful testimony, his breach although it could render the agreement
void did not justify the admission of the statements against him at trial. The
proper inquiry remains whether the statement was coerced in any way, and that
question is to be answered with complete disregard of whether or not petitioner
in fact spoke the truth. Rogers v. Richmond, 365 U.S. 534, 544 (1961); see also
Shotwell, 371 U.S. at 350 n.10 (where the offer of immunity is given in the
context of an investigation or prosecution, the truth or falsity of the disclosure
given is irrelevant to the question of its admissibility) (citing Rogers, 365 U.S. at
544).
Hawkins position is precisely that of a person, accused or suspected of a
crime, to whom a policeman, a prosecutor, or an investigating agency has made a
promise of immunity or leniency in return for a statement. Shotwell, 371 U.S. at
348. In such circumstances, an inculpatory statement [is] the product of
inducement, and thus not an act of free will. Id. Here, Hawkins was induced by
a promise of leniency to give authorities incriminating statements, such that the
statements could not be considered voluntary. As a result, the testimony was
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admitted in violation of Hawkins right against self-incrimination. See United

States v. Escamilla, 975 F.2d 568 (9th Cir. 1992) (reversing conviction because of
erroneous admission of defendants confession at trial, where confession was
given pursuant to plea agreement that was withdrawn by government).
Accordingly, we find that counsels failure to appeal this issue was deficient. We
consider the potential prejudicial effect of this attorney error below.
4. Witness Hearsay Statement
Hawkins next asserts that counsel was ineffective for failing to object at
trial to Chief Sades testimony that an individual told the police that Hawkins
was in the vicinity of the crime scene. In addition, Hawkins claims that counsel
further damaged the defense by eliciting the name of the informant during crossexamination of Sade. Assuming that counsels failure to object to this hearsay
and subsequent error on cross examination was deficient, Hawkins cannot show
that this error was prejudicial, as he admitted to being at the scene of the crime in
his 10:30 p.m. interview on March 29, as well as in his written statement to the
police given March 30 neither of which is challenged here. Thus, counsel was
not constitutionally ineffective in this instance.
5. Fourth Amendment challenges
Finally, Hawkins claims that his counsel was ineffective in failing to raise
at trial or on appeal any Fourth Amendment challenges to the states evidence.
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Hawkins contends that he was illegally detained on March 27, 1983 when he was
brought to the police station to be photographed, and again when he was brought
to the station for questioning on March 29 on the basis of the witness tip placing
Hawkins in the vicinity of the crime scene. He argues that the court should have
suppressed the fruits of these illegal detentions, including the photographs, the
victims subsequent photo identification of Hawkins, and Hawkins audiotaped
statements the night of March 29 in Neodesha and the morning of March 31 in
Chanute.
Hawkins presented this claim in his 2254 petition as an alternative ground
for challenging the admission of the videotaped statements, and not as a separate
instance of ineffective assistance. The district court did not comment upon the
argument. Even assuming the issue (framed as a claim of ineffective assistance)
has not been waived, it is meritless. Despite Hawkins assertions to the contrary,
there is no indication that Hawkins was arrested when he was photographed on
March 27, 1983, and even if the witness tip failed to establish probable cause for
Hawkins detention on March 29, no incriminating statements were taken at that
time. Moreover, Hawkins returned to the station voluntarily later that same
evening because he wished to make a statement. Therefore, Hawkins audiotaped
statement given at 10:30 p.m. that night cannot be considered tainted fruit of an
illegal detention. Finally, Hawkins voluntarily accompanied Chief Sade to
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Chanute for the PSE test on the morning of March 31, and nothing indicates that
his Mirandized, audiotaped statement, made immediately after the PSE, was in
any way involuntary. Because this claim is meritless, Hawkins counsel was not
ineffective for failing to raise it.
C. Prejudice under Strickland
We have concluded that counsel was deficient in: (1) failing to appeal the
admission of Hawkins videotaped statements given March 31 in Neodesha; and
(2) failing to appeal the admission of Hawkins preliminary hearing testimony.
We now must determine whether counsels deficient performance was prejudicial.
Under the prejudice prong of Strickland, Hawkins must show that there is a
reasonable probability that, but for counsels unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Strickland, 466
U.S. at 694. In evaluating prejudice under Strickland, we must consider the
totality of the evidence before the judge or jury. Id. at 695. That is, [t]aking
the unaffected findings as a given, and taking due account of the effect of the
errors on the remaining findings, a court making the prejudice inquiry must ask if
the defendant has met the burden of showing that the decision reached would
reasonably likely have been different absent the errors. Id. at 696.

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We first address the erroneous admission of Hawkins preliminary hearing

testimony and conclude that it was not prejudicial under Strickland, as the content
of Hawkins testimony did not differ materially from the version of events he
initially provided to police in his written statement of March 30 (which Hawkins
does not allege was improperly admitted at trial). In both statements, Hawkins
claimed that Daugherty had committed the rape while Hawkins served as a
lookout. Although the preliminary hearing testimony additionally placed Hawkins
inside the victims house where he claimed to have personally observed
Daugherty on top of the victim, it cannot be said that the erroneous admission of
this additional fact establishes a reasonable probability that, but for its admission,
the jury would have reached a different conclusion with respect to Hawkins guilt
regarding the charges of aggravated battery, rape, and sodomy. Because the
claimed error fails the prejudice prong of Strickland, counsel was not
constitutionally ineffective for failing to raise the issue on appeal.
A more difficult issue arises in evaluating the possible prejudice resulting
from the admission of the videotaped statements. We concluded above that
Hawkins interview in Chanute the morning of March 31 was admissible, but that
his statements given at the county attorneys office in Neodesha in the two
videotaped sessions on the afternoon of March 31 were obtained in violation of
Hawkins right to counsel. As noted, only the transcript of the audiotape which
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captured the morning interview in Chanute and a portion of the first of the two
afternoon video sessions in Neodesha remains in the record. The second video,
which was played for the jury, was never transcribed, and we can only speculate
as to its contents. However, it is clear from the transcript of the first afternoon
session that Hawkins made very incriminating statements during this
interrogation, including admitting that he struck the victim and orally sodomized
her.
In order to evaluate the possible prejudice of counsels error in failing to
appeal the admission of these statements, we must be able to assess what evidence
properly remained before the jury. The transcript of the audiotape, however, does
not clearly reflect at what point the morning interview in Chanute (containing
admissible statements) ended, and the afternoon interview (containing
inadmissible statements) began. Most significantly, on page 176 of the trial
transcript appear thirteen lines of statements which arguably belong to either
session, and it is within these lines that Hawkins first admits to orally sodomizing
the victim. We reprint these lines below (in bold) in context:
Q
A
Q
A

Lets get this all cleared up now Dana. Okay, lets clear it
up now. We could end the investigation.
I dont know, I dont know.
What was in the, this front room that you went into,
what was there, can you describe the furniture, or the
setting of the room?
Hu uh.
- 29 -

Q
A
Q
A
Q
A
Q
A
Q
A
Q

A
Q
A
Q
A
Q
A
Q
A
Q
A
Q
A
Q
A
Q
A
Dana.

Was the sexual assault being, taking place on the floor, or on a

couch?
On the floor I think.
What did the old lady have on?
I dont know, I didnt notice.
Did you pick up a knife while you were in there?
Not that I can remember.
Did Robert pick up a knife?
I didnt see him.
Dana, do you feel like that you raped the old lady?
I feel like I dont know. How I feel like.
Well, Dana, I cannot make you any promises of any sort,
and I do not have any authority to do that, but I can tell
you that if you will continue to cooperate in this
investigation as you have, that should you become
charged as a result of this I will do anything that I can to
help you out.
Ill cooperate, cause I want to know.
Okay, do you now want to, will you not consent to
taking another PS[E] test in relation to the statements
that youve just made.
Ill try.
Okay, lets try it, and well talk again after PS[E] test.
Okay. That will end this portion of the this interview at
9:47 a.m. on the 31st day of March, 1983.
Well, wait a minute. I didnt.
What do you mean?
I didnt stick it in her.
You didnt?
I stuck it in her mouth I think.
Okay, all right. Good, good.
I didnt stick it in her pussy.
Getting it cleaned up.
She didnt bite me though.
She didnt bite you (inaudible.)
But I know I didnt stick it in her.
Okay.
At the same time.
UNIDENTIFIED SPEAKER: Were back on tape now
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A
Q
A
Q
A
Q
A
Q
A
Q
A
A
Q
A

(Mr. Sade) Okay, a few minutes ago Dana we ended a

video taped interview after we sat and talked for a few
moments. It appeared to me that you were becoming
upset, possibly as a result of your crying, and I at that
point in time asked you what you could add to it. I
asked you to go ahead, lets clean it all up, lets get the
whole truth out and youll feel better. Okay, at that time
you told me that you had raped the old lady, is that
correct?
Not in her, I didnt
UNIDENTIFIED SPEAKER: But now you
remember it even more, you didnt rape her,
why dont you tell us
I didnt stick it in her pussy.
(Mr. Sade) Okay, did you stick it in her rear end?
No.
Did you stick your penis in her mouth?
Yeah.
Okay. Did she bite you?
Not that I I aint got no places on me.
Okay. Where and what part of the house were you at when you
stuck your penis in her mouth?
I dont know.
You dont recall. Okay, where was Robert at at the
time you stuck your penis in her mouth?
Well, I dont remember.
UNIDENTIFIED SPEAKER: Was he in the apartment?
No.
(Mr. Sade) Okay, had he been in the apartment?
Yeah, he was in there before I was.

(Trial Tr. at 175-77 (boldface and italics added).)

It is clear that everything prior to the statement (shown above in italics),
That will end this portion of this interview at 9:47 a.m. on the 31st day of
March, 1983, was part of the morning session in Chanute. It is also clear that
everything after the statement (shown above in italics), Were back on tape now
- 31 -

Dana, was part of the afternoon session. What is ambiguous is when the
intervening thirteen lines of transcript (shown above in bold) were recorded.
At oral argument before this court, Hawkins counsel contended that the
transcript indicated a break in the tape following the questioners statement
announcing the end of the interview at 9:47 a.m. Hawkins submits that all the
following lines were part of the afternoon session, which we have concluded was
an unconstitutional interrogation. The government conceded at oral argument
that the transcript was ambiguous.
We believe it is impossible to resolve this ambiguity. One plausible
reading might be that Hawkins statement Well, wait a minute, and the
subsequent twelve-line exchange was an impulsive comment given just before
Sade turned off the recorder. Another plausible reading is that the thirteen lines
were recorded in the afternoon, given that these lines appear to be contextually
unrelated to the foregoing discussion in the transcript, and given that the earliest
lines following the statement, Were back on tape now, (clearly recorded in the
afternoon session) appear to refer back to the thirteen-line exchange.
Specifically, Sade refers to a discussion that took place a few minutes ago, in
which Sade had asked Hawkins to go ahead and lets clean it all up. Likewise,
in these lines immediately following the disputed exchange, Hawkins reiterates
that he didnt stick it in her pussy.
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We cannot discern from this transcript whether these critical thirteen lines
formed part of the morning or afternoon questioning. However, even assuming
arguendo that these lines were recorded as part of the afternoon session in
Neodesha, and therefore were inadmissible, we believe that, in light of the totality
of the evidence properly before the jury, Hawkins has not established a reasonable
probability that, absent this evidence, the jury would have had a reasonable doubt
respecting Hawkins guilt. See Strickland, 466 U.S. at 695.
First, a Kansas Bureau of Investigation expert testified that head and pubic
hairs found in the victims bedding matched Hawkins characteristics. Although
the expert admitted that such evidence was not conclusive, he did testify that the
ratio of persons with similar characteristics were 1 in 700 for the pubic hair, and
1 in 4,500 for the head hair. Next, a medical doctor testified that the victim
suffered vaginal and rectal injuries. The victims statements indicated that she
was attacked by one man, and she identified Hawkins from a photographic lineup.
Finally, even Hawkins own statements were not unequivocally exonerating.
Hawkins story kept changing, as evidenced by his initial written statement, his
preliminary hearing testimony, and the March 31 morning interview in Chanute
(excluding the disputed 13 lines of transcript). Although Hawkins insisted
initially that Daugherty committed the rape while he stood watch, he eventually
admitted first that he had been inside the house, then that he entered her bedroom
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and hit her with his fist. Finally, during the morning interview in Chanute, when
asked if he had raped the victim, Hawkins was ambivalent:
Hawkins: I just dont know. Just dont know if I did it or didnt.
Q.
Isnt that something that you would remember?
A.
Yeah, if I did it, I think Id remember it. Myself, I dont
think I did it.
Q.
Dana, if the old lady were to pick you out of a line up as
the one who assaulted her, one who raped her, would she
be correct in doing so?
A.
She could be, because I dont know if I did or didnt.
(Trial Tr. 174.)
We conclude that, in light of this evidence properly admitted at trial,
Hawkins has not shown a reasonable probability that, absent the videotape
containing his outright admission that he sexually assaulted the victim, the jurys
verdict would have been different. Hawkins defense therefore was not
prejudiced by the admission of the videotape, and his counsel was not
constitutionally ineffective for failing to challenge its admission on appeal.
II. RIGHT TO CONFRONTATION
Hawkins independently claims that the stipulation to admit the victims
hearsay statements violated his right to confrontation. The district court held that
the Kansas Court of Appeals ruled this claim procedurally barred. We agree.
On state collateral review, the Kansas Court of Appeals noted that under
Kansas Supreme Court Rule 183, a collateral proceeding under Kan. Stat. Ann.
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60-1507 cannot ordinarily be used to review mere trial errors that should have
been raised on direct appeal; however, the rule provides that trial errors affecting
constitutional rights may be raised even though the error could have been raised
on appeal, provided there were exceptional circumstances excusing the failure to
appeal. Kan. Sup. Ct. R. 183(c). The Kansas Court of Appeals noted that
Hawkins claimed that his attorneys ineffective assistance constituted an
exceptional circumstance for failing to raise the confrontation issue on direct
appeal. However, the court of appeals concluded that Hawkins counsel was not
deficient in this regard and we agree. As such, we agree that the state procedural
rule barring (absent exceptional circumstances) issues from being raised in a
collateral challenge that could have been raised on direct appeal properly served
as the basis for the courts judgment, and agree with the district court that this
issue was procedurally barred.
CONCLUSION
We AFFIRM the district courts denial of relief under 28 U.S.C. 2254.

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